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United States of America v. Garjon Collins

April 22, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GARJON COLLINS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:09-cr-00186-Joseph S. Van Bokkelen, Judge.

The opinion of the court was delivered by: Herndon, District Judge.

ARGUED JANUARY 12, 2011

Before KANNE and TINDER, Circuit Judges, and HERNDON, District Judge.*fn1

The defendant, Garjon Collins, seeks review by this Court of his sentence, asserting that the district judge's sentence of 108 months of incarceration was unreasonable. The defendant seeks a reduction in sentence of 24 months. We affirm.

I.BACKGROUND

The defendant was indicted on 11 counts of misusing a Social Security number under 42 U.S.C. § 408(a)(7)(B) and 11 counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The defendant entered a plea of guilty to all 22 counts and, after a lengthy sentencing hearing which included additional testimony and evidence from the government, the district judge sentenced the defendant to 108 months, composed of 60 months on each of Counts 1-11 to run concurrently with each other; 24 months on Count 12 to run consecutively to Counts 1-11; 24 months on Count 13, to run consecutively to Count 12; and 24 months on each of Counts 14-22, to run concurrently with each other and with Count 13.

The defendant has exhibited a lengthy, well-seasoned history of identity theft. His first sentence for this offense occurred in 2003 in Cook County, Illinois, where he received a state sentence of 18 months probation for possession or display of altered identification documents. He used those documents, in 2003, to purchase five firearms in Indiana. For that offense he was charged and convicted in federal court with being a felon in possession of a firearm, and was sentenced to 37 months imprisonment. Soon after his release from federal prison in 2007, the defendant went on an identity theft spree, obtaining the names, addresses, social security numbers and birth dates from Illinois residents, mostly from the North Shore area of Chicago. These individuals had, in general, salaries in excess of $250,000. He used these identities to create false birth certificates, pay records, and other documents which he then took to the Bureau of Motor Vehicles offices in northern Indiana to obtain multiple Indiana state identification cards, none of which were in his real name. With these Indiana identities, the defendant, or one of his co-conspirators, would pur-chase large-ticket items, and take those items back into Illinois for resale.*fn2

The evidence presented at the sentencing hearing was that between 2002-2004 the defendant stole at least seven additional identities. Two victims of those offenses testified at his sentencing hearing. These victims (identified as "D.D." and "D.C.") testified as to the impact of the identity theft on their lives, which was significant. D.C. testified that he has spent countless hours over the past five years dealing with the aftermath of the defendant's use of his identity (including having had a warrant issued for his arrest in Indiana for writing bad checks).

D.D., an established businessman, testified that he worked in the financial industry for twenty years, and had a limited liability company which designed medical field software. After his identity was stolen by the defendant, and over $12,000 was charged to accounts in his name, D.D.'s credit rating dropped, he was denied credit, his company failed and he lost his investment.

Three victims from the instant case (identified as "D.W.C.," "P.R." and "J.M.") testified at the sentencing hearing as well. D.W.C. testified that his stolen identity resulted in harassing calls from a collection agency, and approximately $4,500.00 in unauthorized charges against his account. He testified to the mental anguish and hours he spent trying to resolve the issues resulting from the theft of his identity. P.R. testified that her credit score had been adversely affected as a result of the theft of her identity by the defendant, that she lost her sense of privacy, the ability to secure a home equity loan for a period of time, the loss of her good name and morale. J.M. testified that the identity theft he experienced as a result of the defendant's actions caused him to lose time at work, and his feeling of violation.

Both the government and the defendant objected to the Presentence Investigation Report ("PSR") and submitted sentencing memoranda to the district court. The defendant asserted that there were only eleven victims, not thirty, and that his criminal history had been incorrectly determined. The government asserted that the amount of loss was in excess of $200,000, not $46,203.92, as determined by the PSR. The district judge heard oral argument on the objections, took the matter under advisement, and ruled at a later sentencing hearing. Neither party objected to the factual description of the offense.

The district court determined that the total number of victims was twenty-three (23) , and also determined*fn3 that the defendant's final criminal history calculation would not include an offense which took place in 1989, because that offense occurred more than fifteen years before the date of the offenses to which the defendant had plead guilty.

The district court further determined that the defendant's total criminal history category was a IV, after subtracting three points. Finally, the district court determined that the amount of loss was $171,049.00, declining to adopt the government's argument that the crimes committed between 2002-2004 were to be included in the loss calculation. The district judge determined that the total offense level was a twenty-two (22), finding that the offenses had a base offense level of six (6) which was increased ten (10) levels pursuant to U.S.S.G. § 2B1.1(b)(1)(F) because the loss involved more than $120,000.00. The district court added two (2) levels to the sentence based on U.S.S.G. § 2B1.1(b)(2)(A)(i) because the defendant's offense involved more than ten (10) victims. Two (2) levels were added because the defendant's offense included stolen property and because the defendant was involved in receiving and selling stolen property. U.S.S.G. § 2B1.1(b)(4). Finally, the district court added four (4) levels pursuant to U.S.S.G. § 3B1.1(a) upon the district court's finding that the defendant was an organizer or leader of five (5) or more individuals in the commission of the offenses. The adjusted offense level was a twenty-four (24), however the defendant received a reduction of two (2) levels for his acceptance of responsibility, resulting in a final offense level of twenty-two (22).

The district judge then recited the factors of 18 U.S.C. ยง 3553(a) acknowledging his obligation under the law as he began his analysis. To frame just how scheming the defendant had been in his criminal activity and how serious the crimes were that he committed, the district judge began by reading a letter the defendant had written to the judge in the days leading up to the hearing. In the letter, the defendant sounded a sincere note as he spoke of his remorse at having adversely affected so many people-victims and family alike. He wanted to apologize to all and assure the district court he was and would be a changed man. The defendant requested of the district judge, "that you consider leniency in sentencing me." The defendant failed to consider that a sentencing judge is not likely to leave relevant matters of the past in the past. From defendant's last federal sentencing, Judge Van Bokkelen retrieved a letter which the defendant had written to Judge Lozano before being sentenced. The 2005 letter was nearly identical in tone and word regarding the defendant's attestations of remorse, promises of change, and his plans for ...


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